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Editors --- "Standards of Proof and Rules of Evidence for Statutory Prosecutions" [2004] AdminRw 11; (2004) 56 Admin Review 61

Standards of proof and rules of evidence for statutory prosecutions

Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd[1] concerned prosecutions for breach of the Customs Act 1901 and the Excise Act 1901. The appellant had commenced action against the respondents in the Supreme Court of Queensland, seeking convictions for offences contrary to each Act and an order for the recovery of penalties. Questions arose as to the standard of proof required for conviction and whether the proceedings were to be treated as criminal proceedings for the purpose of Queensland’s Evidence Act.

Delivering the leading judgment, Hayne J said that the standard of proof required could not be determined by classing the proceedings as ‘civil’ or ‘criminal’. Litigation could not be divided into two simple classes because some proceedings had characteristics of both. While the Customs and Excise Acts provided for the practice and procedure when commencing or proceeding with a prosecution, neither Act could be construed as including the standard of proof as a matter of practice and procedure. Otherwise the standard of proof could be fixed by rules of court or by direction of the court or judge in a particular case, and the Acts ‘are not to be construed as permitting such results’.[2] It was therefore necessary to turn to the Judiciary Act 1903, which in turn provided that the common law was to apply. Alternatively, the Crimes Act 1914 directed attention to the common law.

It was ‘strongly arguable’ that the common law required proof beyond reasonable doubt when conviction for an offence against a law of the Commonwealth was sought. It was also ‘strongly arguable’ that, where no conviction was sought but only other remedies (such as a declaration and order for monetary penalties), proof to a civil standard would suffice. Hayne J concluded that, because convictions were sought in the current proceedings, proof beyond reasonable doubt was required.

The rules of evidence, on the other hand, were matters of practice and procedure. The Customs and Excise Acts required the Supreme Court of Queensland to apply its usual practice and procedure for civil cases in the proceedings. Therefore the provisions of the Queensland Evidence Act that usually applied in civil cases were to be used.

[1] [2003] HCA 49.

[2] [2003] HCA 49 at [126].

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